Congress Shreds Constitutional Privacy, But It's Not Over Yet

Today the U.S. Senate voted to approve legislation that essentially legalizes the warrantless surveillance of the communications of U.S. citizens. We know such behavior’s been going on for more than two years, when a whistleblower stepped forward to disclose that AT&T had been working closely with the National Security Agency (NSA) – so much so that the NSA now has its own special rooms in AT&T communications backbone facilities. In these rooms are giant, electronic taps that essentially monitor, record, and allow for the analysis of every phone call, facsimile transmission, and all other electronic communications passing through AT&T’s network.
As the largest telecommunications provider in the United States, it is virtually impossible for any communications network traffic to travel from point A to point B without transiting some node in AT&T’s vast infrastructure. Which in effect means that for as long as this program has been going on, we’ve all been under Big Brother’s scrutiny to some degree.
After the stunning scope of the surveillance program came to light, civil-liberties advocates started digging deeper, and found that AT&T wasn’t the only telecom company that was “assisting” the U.S. government in its “war on terror” by snooping on innocent Americans. This set off a flurry of litigation urging the courts to force AT&T and its corporate colleagues to disclose just how far beyond the Constitution they went in their support of the U.S. Justice Department’s requests for information – and, by extension, just how far the Executive Branch of the government overstepped its own Constitutionally-defined authority.
“No fear,” thought the telecoms, “we’ll just go to our friends in Congress, who have such a stellar record at protecting civil liberties, and they’ll give us a ‘get out of jail free’ card.”
And that is essentially what the Senate did today. It not only legitimized the continuous, warrantless surveillance program currently in place, but expands some parts of it (which parts, we don’t exactly know), and retroactively immunizes telecommunications companies from punishment over laws (privacy and otherwise) they’ve broken (and continue to break) at federal behest. This even though more than two-thirds of the Senate still doesn’t know the true extent of the NSA/DOJ surveillance program, because the NSA/DOJ won’t tell them.
The next likely occupants of the White House, who are both Senators, split on the issue – though not like you’d think. John McCain (R-AZ) abstained from voting on the bill, while Barack Obama (D-IL) voted for it. The White House is thrilled; president Bush plans to sign the bill into law with no delay.
The full implications of this decision remain to be seen. It could have disastrous consequences for the ideal of “network neutrality,” or the notion that all communications traffic routed over the Internet should be treated equally and not discriminated against based on content, sender, or receiver. Telecom companies have already done much to make the Internet a more closed, proprietary space; now, Congress may have inadvertently given them the legal legs on which to continue to engage in – and intensify – so-called “network management” practices.
After all, what better reason for “network management” is there than surveillance? And hey, if the government says it’s okay, then who the f*ck cares whether or not we throttle, shape, or otherwise block other traffic, like file-sharing programs or voice-over-IP telephony? “Network management” might have just become synonymous with “national security,” and if that is the case, all bets are off. What good is an “Internet Freedom Preservation Act” if one of the fundamental freedoms of Internet communication has just been squelched?
The “FISA Amendments Act of 2008” is but just one of several bad things happening on the privacy and freedom-of-expression fronts in Washington, D.C. Another stinker working its way through Congress right now is the “PRO-IP Act.” Like lots of other bills, this one has a clever name, which stands for “The Prioritizing Resources and Organization for Intellectual Property.” As the culture industry more generally is now one of the United States’ top exports, and major media companies have been working for years to warp copyright law to reduce public creativity with regard to the use of cultural products, passage of the PRO-IP act would be quite a coup.
The PRO-IP Act is especially scary for two reasons. The first is that it would create a federal “copyright czar” to work with major media companies to investigate and prosecute copyright infringement on several levels. This would more directly make the federal government an agent of Big Media, placing the onus for copyright prosecutions on the very same institutions that are supposed to, you know, guarantee freedom of speech through transformative expression and fair use.
What’s worse, the PRO-IP act would also essentially apply the federal “war on drugs” forfeiture laws to copyright-related crimes. Just as law enforcement agencies across the country discovered the bounty they could reap by seizing assets they believed were used in the commission of drug crimes – resulting in the confiscation (rightfully or not) of billions of dollars of cash and property – the same frame of mind will be applied to copyright-related crime.
Imagine this scenario: you’ve decided, for your own reasons, to get rid of your personal CD collection, but first you digitize the music. On your hard drive, you now have copies of copyrighted material – copies which you rightfully own, because you bought the CDs. Now, let’s say your home is destroyed by fire – your CDs are melted but somehow your computer survives.
Once you’ve gotten back on your feet, you re-connect to the Internet and engage in some innocuous file-sharing with friends (let’s even assume you’re sharing legal files). Since we already don’t know just how much power telecom companies have to monitor and control our communications, and they’re demonstrably more than willing to bend to the government’s wishes, let’s assume that the fact that you’re engaged in file-sharing sets off some warning bells in a network operations center somewhere. You become a suspect; they somehow discover that you have copyrighted information in your possession, and you may be sharing it with others.
Under the PRO-IP Act, the Justice Department would then become involved. They’d open an investigation on you, allowing them to scrutinize your communications records – up to and including the information stored locally on your own devices. If they (meaning the RIAA/MPAA, prompted by the Justice Department) determine that you’ve committed a copyright violation, you’d be liable for both monetary and criminal damages. In addition, if reasonable cause can be found that you’ve somehow unjustly benefited from the sharing of copyrighted material, then the drug-forfeiture schema comes into play – allowing law enforcement to seize your computer and any other of your possessions it believes you received as a form of “unjust enrichment”.
The PRO-IP Act, which was actually introduced late last year, has already and overwhelmingly been approved by the House of Representatives; currently it awaits hearing in the Senate’s Judiciary Committee. An earlier provision which would have made it possible for people to be fined up to $30,000 per “unauthorized file” on their computers or other portable media devices was removed during House deliberations.
Finally, there is a piece of trade law under development that would forcibly apply U.S. copyright law – including, potentially, the draconian provisions of the PRO-IP Act – to several other countries. This measure is called the Anti-Counterfeiting Trade Agreement, or ACTA. ACTA originally began as a trade agreement designed to track and interdict the counterfeiting of real goods, like designer clothes and prescription medicines. At the behest of U.S. authorities, ACTA’s purview was secretly expanded to include intellectual property. Under the new definition, “counterfeiting” involves the “unauthorized” copying of any digital media.
Here’s another hypothetical: you decide to take a trip overseas, and bring along digital media devices. Upon your return, or at the customs checkpoint of any ACTA-participating country, you are stopped and asked to remove all of your digital media devices (laptops, cell phones, iDevices, etc.) for “inspection.” Your items are then scanned for “unauthorized (read: counterfeit or copied)” information. The customs officer demands you show proof that you rightfully own the data you carry. You cannot. Your devices are confiscated, and you may face further penalty.
ACTA is also imminent: during the G8 Summit this week, the ACTA plan was endorsed and a timetable for implementation envisioned by the end of the year. The United States has already sullied itself quite thoroughly in the court of public opinion at fora like the World Trade Organization, so ACTA’s being pushed as a multilateral agreement, whereby the U.S. individually pursues, entices, and/or coerces countries into accepting our principles of information freedom.
So far, Australia, Canada, most of the the European Union, Japan, Mexico, New Zealand, Russia, South Korea, and Switzerland have nominally committed to the implementation of ACTA. Combined with the PRO-IP Act and Congress’ outright dereliction of duty with regard to the protection of our Constitutional liberties more generally, you might say the outlook is bleak; you might even say focusing on a fight over something like network neutrality alone is now strategically misplaced, because by the time you get what you think you want the meaning of “neutrality” has been redefined out from under your feet.
If you want to learn more about the PRO-IP Act and ACTA, check this conversationSkidmark Bob and I had a couple of weeks back on Freak Radio Santa Cruz.